Legal Question in Real Estate Law in California

Our neighbor agreed to share in the cost of replacing our shared fence and we both signed a contract with the fencing company. Once the old fence had been removed, the fencing company called and said our neighbor is now refusing to allow the fence to be rebuild in the original position but insteas wants it to be "made straight" by moving about a foot more towards our house. Doing this will require removal of our landscaping and sprinklers. We offered to compromise with an adjustment that would not encroach on our landscaping but he refused saying he "wants it done right". We have lived in the house for 8 years and my parents lived in it for over 20 years before us. Can we just have the fence put back in it's original position wihout his permission?


Asked on 9/13/12, 9:06 am

1 Answer from Attorneys

Bryan Whipple Bryan R. R. Whipple, Attorney at Law

I'd say you are on shaky legal ground if this goes to court. While courts can allow encroachments under an "equitable easement" theory or even on an easement-by-prescription basis, they can and do often require the adjoining owners to observe their surveyed boundaries quite strictly. Here is an excerpt from a trial brief I wrote a few years ago:

"See, for example, California Easements and Boundaries: Law and Litigation (CEB, 2009) at �8:24:

'Another doctrine that is used to adjudicate the rights of the parties, particularly in encroachment actions, is the doctrine of relative hardships. This is an equitable doctrine that allows a court to balance the equities and not only refuse an injunction to remove an encroaching use but individually tailor relief based on the circumstances. This principle is illustrated by cases such as Linthicum v. Butterfield [175Cal.App.4th 259, decided June 24, 2009, rehearing denied Sept. 9, 2009]; Hirshfield v.Schwartz (2001) 91 Cal.App.4th 749........Field-Escandon v. DeMann (1988) 204 Cal.App. 228......and Christensen v. Tucker (1952) 114 Cal.App.2d 554...... CEB California Easements and Boundaries, supra, at �8.24, pp. 386-387 [case capsule descriptions omitted; emphasis added].' "

I lost the case - the judge told my client the fence needed to be moved six inches to place it on the surveyed property line.

The Linthicum v. Butterfield case is probably most supportive of your position, and I suggest you look it up on line or at your county's law library. However, I think you are more than 50% likely to lose in court if it goes that far.....your hardship is probably not sufficient to convince a judge that equity requires giving you an easement. It's a close call. I recommend negotiation rather than a trip to court.

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Answered on 9/13/12, 9:53 am


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